In re the Estate of Bluttal

Appellate Division of the Supreme Court of New York

In re the Estate of Bluttal

37 A.D.2d 530, 322 N.Y.S.2d 18, 1971 N.Y. App. Div. LEXIS 3876

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 1971

StatusPublished

This text of 37 A.D.2d 530 (In re the Estate of Bluttal) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Bluttal, 37 A.D.2d 530, 322 N.Y.S.2d 18, 1971 N.Y. App. Div. LEXIS 3876 (N.Y. Ct. App. 1971).

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Opinion

— Decree of Surrogate’s Court, Bronx County, entered January 7, 1971, unanimously reversed, on the law and the facts and in the interest of justice, and the proceeding remanded for a new trial to be held to a jury in Supreme Court, Bronx County with costs and disbursements to abide the event. The proceeding involves a certain ring turned over for safekeeping to respondent-appellant hospital on admission of decedent; the crux of the dispute is whether the ring was returned to decedent prior to her death. After nonjury trial, the Surrogate found for petitioner-respondent administrator of the decedent’s estate, directing return of the ring or, in default thereof, payment of its value, found to be $20,000. Though the method of safekeeping and receipting used by the hospital’s responsible employee was unusual, to say the least, it apparently sufficed as to those items eoncededly turned over to decedent, of great aggregate value themselves; it seems, therefore, that no adverse inference flows from that factor alone. Proof of value of the missing ring was not conclusive in that there was not firm evidence of identity of the missing article with that spoken of by the valuing expert. And, finally, the [531]*531court erred in not recessing the trial overnight to permit the nurse whose signature appeared on the receipt to be called as a witness for the hospital. That request was not dilatory and, in this unusual case, the court should have heard all available testimony, especially from this important witness. In sum, the trial record was not developed to that state of completeness which would justify the making of findings in favor of either side. In the interest of justice, a new trial is clearly indicated, which should not take place before the same fact trier who has once before arrived at findings and conclusions. We deem the issue suitable for exploration by a jury (see Matter of Allaway, 187 App. Div. 87; Matter of Satterlee, 281 App. Div. 251). To which we add the observation that it is at least unwise for trial counsel to be a witness in the case he is trying. Concur— MeGivern, J. P., Markewich, Murphy, McNally and Tilzer, JJ.

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— Decree of Surrogate’s Court, Bronx County, entered January 7, 1971, unanimously reversed, on the law and the facts and in the interest of justice, and the proceeding remanded for a new trial to be held to a jury in Supreme Court, Bronx County with costs and disbursements to abide the event. The proceeding involves a certain ring turned over for safekeeping to respondent-appellant hospital on admission of decedent; the crux of the dispute is whether the ring was returned to decedent prior to her death. After nonjury trial, the Surrogate found for petitioner-respondent administrator of the decedent’s estate, directing return of the ring or, in default thereof, payment of its value, found to be $20,000. Though the method of safekeeping and receipting used by the hospital’s responsible employee was unusual, to say the least, it apparently sufficed as to those items eoncededly turned over to decedent, of great aggregate value themselves; it seems, therefore, that no adverse inference flows from that factor alone. Proof of value of the missing ring was not conclusive in that there was not firm evidence of identity of the missing article with that spoken of by the valuing expert. And, finally, the [531]*531court erred in not recessing the trial overnight to permit the nurse whose signature appeared on the receipt to be called as a witness for the hospital. That request was not dilatory and, in this unusual case, the court should have heard all available testimony, especially from this important witness. In sum, the trial record was not developed to that state of completeness which would justify the making of findings in favor of either side. In the interest of justice, a new trial is clearly indicated, which should not take place before the same fact trier who has once before arrived at findings and conclusions. We deem the issue suitable for exploration by a jury (see Matter of Allaway, 187 App. Div. 87; Matter of Satterlee, 281 App. Div. 251). To which we add the observation that it is at least unwise for trial counsel to be a witness in the case he is trying. Concur— MeGivern, J. P., Markewich, Murphy, McNally and Tilzer, JJ.

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Bluebook (online)

37 A.D.2d 530, 322 N.Y.S.2d 18, 1971 N.Y. App. Div. LEXIS 3876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-bluttal-nyappdiv-1971.

Opinion

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